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Latafat Ali Khan Vs. Kalyan Mal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1938All210
AppellantLatafat Ali Khan
RespondentKalyan Mal
Excerpt:
- - 184 where there was a precisely similar case......judgment-debtor deposited rs. 300 as an instalment and it was not until 16th july 1928 that the decree-holder applied to withdraw this sum. the present application for execution was made on 13th january 1931 for an amount of rs. 676-4-0 stated to be due on the decree. rs. 600 had been credited as paid by the judgment-debtor and the decree holder claims that rs. 300 are due on account of the instalment of 1st september 1926 and rs. 300 are due on account of the instalment of 1st september 1927. reliance was also placed by the decree-holder on an alleged payment of 2nd august 1928. the trial court did not believe the evidence on this point. the lower appellate court merely recited the fact that the trial court had not believed this allegation but did not come to a finding on the point......
Judgment:

Bennet, J.

1. This is an execution second appeal by a judgment-debtor whose objection that the application for execution is barred by limitation has been dismissed by the two Courts below. The facts are that there was a decree passed on 28th. June 1919 in a mortgage suit and the final decree on 21st June 1920 for Rs. 1612.2-0. The first application for execution was made on 11th June 1921 and there was a compromise on 29th August 1921 by which it was agreed that the decretal amount should be paid by yearly instalment of Rs. 300 on each year beginning with lab September 1922 and ending on 1st September 1927. On 23rd September 1923 the second execution application was made and, was struck off. On 22nd August 1925 the judgment-debtor deposited Rs. 300 as an instalment and it was not until 16th July 1928 that the decree-holder applied to withdraw this sum. The present application for execution was made on 13th January 1931 for an amount of Rs. 676-4-0 stated to be due on the decree. Rs. 600 had been credited as paid by the judgment-debtor and the decree holder claims that Rs. 300 are due on account of the instalment of 1st September 1926 and Rs. 300 are due on account of the instalment of 1st September 1927. Reliance was also placed by the decree-holder on an alleged payment of 2nd August 1928. The trial Court did not believe the evidence on this point. The lower Appellate Court merely recited the fact that the trial Court had not believed this allegation but did not come to a finding on the point. We have ourselves examined the evidence and we agree with the trial Court that the alleged payment was not proved. One reason was that the decree-holder who was a receiver admitted that he did not enter this alleged payment of 1928 till 1930 in his account books when he made the application for verification of this payment into Court.

2. Now the appeal has been argued before us on two points. Firstly, learned Counsel addressed us at great length on his third ground of appeal which states that if Article 182 applied at all, the case was governed not by Clause 5 but by Clause 7 and on his fourth ground argued that the proper Article was Article 181 and not Article 182. Now it is to be noted that the case for the decree-holder depends on the finding that she application to withdraw the money on 16th July 1928 is a step-in-aid of execution and if this be so, then whether we regard the two instalments of September 1926 and 1927 as the instalments to be realised, or whether we regard the whole amount as being due on September 1926 as learned Counsel for the appellant states was the case, in either case the matter will be saved by limitation. The contention, of learned Counsel was supported by reference by him to two rulings of this Court. One of these is a Full Bench ruling, Joti Prasad v. Srichand : AIR1928All629 . Learned Counsel claimed that the 5th question in this ruling was a ruling on the point of whether in the case of an instalment decree the proper paragraph of Article 182 to look to was para. 7 or para. 5. We do not find that any such question was for mulated in the 5th question either in the original form or as re-drafted on p. 986, nor is any such point contained in the answer on p. 990. That ruling in our opinion dealt solely with the question of what was the correct starting point for the first application for limitation. Now in Article 182 there are seven paragraphs and we consider that all those paragraphs, except para. 5 deal with the question of what is the time from which limitation begins to run in the case of a first application for execution Para. 5 alone deals with the case of subsequent applications and this paragraph states that the period of three years shall run from, the date of the final order passed on an application made in accordance with law to the proper Court fox execution, or to take some step-in-aid of execution of the decree or order.

3. The wording of para. 5 shows that it refers to an application for execution where there has been a previous proceeding in execution in the Court. The other paragraphs do not deal with such a question at all. Reference was also made by learned Counsel to Ram Prasad Ram v. Jadunandan Upadhia : AIR1934All534 . In this case as stated in the head-note a Bench of this Court laid down that:

A decree-holder has two distinct rights, (1) to receive Instalments as and when they fall due; (2) to enforce the payments of all the Instalments that might remain unpaid, In the event of two successive Instalments remaining unpaid. In the present case, the second right was time-barred as the present application was made more then three years after the right to apply first accrued on default of the first two Instalments, Article 181, Lim. Act, being applicable. But if the second right is time-barred, it would not follow that the first right is also time-barred. The decree-holder could therefore recover such of the instalments as had fallen due on the date of the application for execution and Article 182(7), Lim, Act, was applicable.

4. Now we consider that this dictum is against the contention of learned Counsel. In the present case, as already noted, the application may be treated in either way, either as one to recover the balance owing to default as provided in the compromise or as to receive the instalments as and when they fall due. The ruling is that this latter remedy to receive the. instalments as and when they fall due will come under Article 182(7). Therefore this is not a case which is under Article 181. As the case comes under Article 182(7), the first application for execution will come under that paragraph and subsequent applications for execution will come under para. (5). This ruling therefore is against learned Counsel. Learned Counsel also referred to a ruling by one single member of this Bench, Hari Ram v. Himan Lal : AIR1935All259 . But the head-note in this ruling states:

Held that, the right of the decree-holder to apply for execution of the decree for the whole of the remaining sum due to him was time-barred; but the decree-holder could recover such instalments as had fallen due by the date of the application for execution provided the same were within time.

5. There is nothing different in this dictum from the dictum quoted from Ram Prasad Ram v. Jadunandan Upadhia : AIR1934All534 which the ruling purported to apply. The next point which was argued was the question as to whether the application of the decree-holder of 16th July 1928 to withdraw Rs. 300 deposited by the judgment, debtor on 22nd August 1925 was a step in aid of execution within the meaning of Article 182, para. 5. Now learned Counsel argued that for a step-in-aid of execution there must be a pending application for execution. If this were so then the last part of this para. 5 would be superfluous because if in every such case there were an application for execution, then the period of limitation which will run from the date of the final order passed on such an application will always be as late as any step-in-aid of execution contained in that proceeding, and no benefit could accrue to any decree-holder from the addition of the last part of this paragraph. We consider that the Legislature intended that the last part of the paragraph should provide something which may in some case be different from the first part and provide a different date and therefore we consider that this interpretation by learned Counsel is not correct. This has been the view taken by the Allahabad High Court. The first ruling taking this view is reported in Kishori Lal v. Shamkaran (1882) A.W.N. 184 where there was a precisely similar case. In Paran Singh v . Jawahir Singh (1884) 6 All. 366 it was held by a Bench of this Court that an application by a decree-holder to be paid the proceeds of a sale of property in execution of the decree was a 'step-in-aid of execution' of the decree, within the meaning of the corresponding Article of the Limitation Act of 1877. In Sujan Singh v. Hira Singh (1890) 12 All. 399 it was held that the expression 'step-in-aid of execution' in the corresponding Article of the Limitation Act of 1877 was intended to cover any application made according to law in furtherance of the execution proceedings under a decree. It included applications made by a decree-holder under Section 258, Civil P.C., to enter up part satisfaction of the decree. The view of the Madras High Court is the same as that of the Allahabad High Court and this is shown by rulings reported in Venkatarayalu v. Narasimha (1879) 2 Mad. 174, Kerala Verma Valiya Rajah v. Shangaram (1893) 16 Mad. 452 and Koormayya v. Krishnama Naidu (1894) 17 Mad. 165.

6. On the other hand, the Calcutta High Court has taken a different view as shown in Hem Chunder Chowdhry v. Brojo Soondury debee (1882) 8 Cal. 89 and Moti Lal. v. Makund Singh (1897) 19 All. 477. Following the view of the Allahabad and Madras High Courts, we hold that the application of the decree-holder to withdraw the money was a step-in-aid of execution. In support of this view, we may point out that the execution of a decree is the carrying out of the decree. In the present case the decree directed the payment by the judgment-debtor of money to the decree-holder. The last step in that proceeding was for the decree-holder to receive the money from the Court and until the decree-holder had received the money, it cannot be said that execution was complete. Therefore the application of the decree-holder to withdraw the money from the Court was a step-in-aid of execution. A similar line of argument has been used in Moti Lal v. Makund Singh (1897) 19 All. 477 on p. 479, in regard to an application by the decree-holder to be put in possession of the property which he had purchased at an auction sale and it was held that this was a step-in-aid of execution. This was stated to be on the analogy of the case in Sujan Singh v. Hira Singh (1890) 12 All. 399. to which we have already referred. We find no merits in this second appeal which we therefore dismiss with costs.


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